The First Amendment protects private discourse and individual contribution to the marketplace of ideas; it also limits the government’s ability to impose religious views on its citizenry, while promising to guard the peoples’ rights to practice the religion of their choice. These fundamental rights are focal points for extensive and controversial religious speech jurisprudence. The extent of these speech rights depends predominantly on who the relevant speaker is: the government may regulate its own speech but is hamstrung from endorsing religion, while private speech enjoys expansive constitutional protection and is not limited by the Establishment Clause. Identifying the speaker can sometimes be a difficult endeavor, however; one such example is of utmost concern to a large, yet distinct, subset of the population-public school students.
Accordingly, this Article focuses on student religious speech in public schools and the First Amendment’s protection thereof. This inquiry is informed by student speech jurisprudence, the axiomatic prohibition against viewpoint discrimination, and government avoidance of Establishment Clause violations. This complicated and oftentimes contradictory caselaw is troubling in its own right, yet is circumscribed even further by another major concern that inhibits students’ free speech rights-qualified immunity.
Qualified immunity protects government officials from civil liability under certain circumstances. This defense does not, however, protect a government official who infringes on a student’s (1) “clearly established” (2) “constitutional rights.” This two-prong test is meant to protect government officials’ reasonable discretionary actions. Of some concern, however, the Supreme Court has generally advised lower courts to reach the “clearly established” prong before the “constitutional violation” prong. This declaration has the potential to create a perverse institutional problem in the realm of student religious speech, where the law is threatened with a perpetual cycle of dismissal on qualified immunity grounds without a forum for establishing clear law to guide government officials and to protect students’ First Amendment rights.